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Comment by raphman | Hacker News Reader

> Many lawyers believe all that matters is whether the output of the model is infringing.

What I don't understand (as a European with little knowledge of court decisions on fair use): with the same reasoning you might make software piracy a case of 'fair use', no? You take stuff someone else wrote - without their consent - and use it to create something new. The output (e.g. the artwork you create with Photoshop) is definitely not copyrighted by the manufacturer of the software. But in the case of software piracy, it is not about the output. With software, it seems clear that the act of taking something you do not have the rights for and using it for personal (financial) gain is not covered by fair use.

Why can OpenAI steal copyrighted content to create transformative works but I cannot steal Photoshop to create transformative works? What am I missing?

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> make software piracy a case of 'fair use'

That's not a good example. Making a copy of a record you own(as an example ripping a audio CD to MP3) is absolutely fair use. Giving your video game to your neighbor to play - that's also fair use.

Fair use is limited when it comes to transformative/derivative work. Similar laws are in place all over the world, just in US some of those come from case law.

> With software, it seems clear that the act of taking something you do not have the rights for and using it for personal (financial) gain is not covered by fair use.

> Why can OpenAI steal copyrighted content to create transformative works but I cannot steal Photoshop to create transformative works?

That's not a good analogy. The argument, that is not settled yet, is that a model doesn't contain enough copyrightable material to produce an infringing output.

Take your software example - you legally acquire Civ6, you play Civ6, you learn the concepts and the visuals of Civ6... then you take that knowledge and create a game that is similar to Civ6. If you're a copyright maximalist - then you would say that creating any games that mimic Civ6 by people who have played Civ6 is copyright infringement. Legally there are definitely lower limits to copyright - like no one owns the copyright to the phrase "Once upon a time", but there may be a copyright on "In a galaxy far far away".

> Why can OpenAI steal copyrighted content to create transformative works but I cannot steal Photoshop to create transformative works? What am I missing?

If Photoshop was hosted online by Adobe, you would be free to do so. It's copyrighted, but you'd have an implied license to use it by the fact it's being made available to you to download. Same reason search engines can save and present cached snapshots of a website (Field v. Google).

In other situations (e.g: downloading from an unofficial source) you're right that private copying is (in the US) still prima facie copyright infringement. However, when considering a fair use defense, courts do take the distinction into strong consideration: "verbatim intermediate copying has consistently been upheld as fair use if the copy is ‘not reveal[ed] . . . to the public.’" (Authors Guild v. Google)

If you were using Photoshop in some transformative way that gives it new purpose (e.g: documenting the evolution of software UIs, rather than just making a photo with it as designed) then you may* be able to get away with downloading it from unofficial sources via a fair use defense.

*: (this is not legal advice)

So, fair use is seen as a balance, and generally the balance is thought of as being codified under four factors:

https://www.copyright.gov/title17/92chap1.html#107

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

There's more detailed discussion here: https://copyright.columbia.edu/basics/fair-use.html

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